Saturday, 6 February 2010

BAE systems and how justice lost out to bribery and extortion

On Friday, it emerged that BAE systems would "admit two criminal charges and pay fines of £286m to settle US and UK probes into the firm." This "is believed to be the first time the two countries have co-ordinated such a corporate corruption "plea bargain" and former Attourney general Lord Goldsmith has said he "strongly supported" the deal which has "shocked and angered" anti-arms trade campaigners.

Campaign Against the Arms trade (CAAT) sum up all that is wrong with this "corporate fine";

As a result of the settlement there will be no opportunity to discover the truth behind alleged bribery and corruption in the many BAE deals that were under investigation by the Serious Fraud Office.

While the acceptance of guilt in relation to Tanzania is welcome, the investigations related to other countries including South Africa and the Czech Republic were far more significant. SFO investigations of deals with several countries were continuing up until today, and only last week the SFO charged a former BAE agent with corruption in relation to deals with several European countries.

The SFO settlement was announced in conjunction with the US Department of Justice whose fine concerned BAE's deals with Saudi Arabia. While the combined fine is more significant, the UK penalty of £30 million is a tiny price for BAE to pay to see the end of the investigations that had been gathering evidence for years and were coming to a head.

However, one other thing struck me as I was reading the BBC's coverage of the incident. The use of the term "plea bargain" for what has occurred is interesting, as it shines a light on the justice system in the western world. To illustrate what I mean, have a look at how LA Progressive describes the process of plea bargaining for the poor (particularly of ethnic backgrounds) in America;

A plea bargain is an agreement in a criminal case where the defendant pleads guilty to a crime – usually to a lesser crime than the original charge – and waives his or her right to a jury trial and the right against self-incrimination. At its worst, I view plea bargaining as a shortcut to justice, sometimes an injustice itself. A plea bargain is to justice what fast food is to gourmet cooking. Quicker doesn’t necessarily mean better, and 90% of criminal cases end up in plea bargains. It gives the impression that justice is a deal that can be bartered. Perhaps these plea bargains are the grease that helps to lubricate an often frustratingly slow and overburdened justice system. Or perhaps they are the grease that clogs up the arteries of the justice system, and makes that system hardened, calcified, inelastic, and diseased – unable to allow justice to flow.

Perhaps some plea agreements serve a legitimate purpose. But what happens when the defendant didn’t commit a crime at all, and is pressured into taking the deal by his or her defense lawyer or coerced by the D.A.? What if the crime should not have been prosecuted at all, such as the case of marijuana possession, or a good kid with no prior offenses? A criminal record – in most cases secured as a result of a plea bargain, whether or not the defendant actually did the crime – can mean prison time, social stigma, and a bar to many educational and employment opportunities. Prosecutors have a lot of power, and they have a lot of discretion in deciding who gets prosecuted and for what offenses. They may choose not to prosecute a nonviolent, victimless crime, or choose not to seek punishment that serves no legitimate social purpose. And as they say, you can indict a ham sandwich.

...

Consider the town of Tenaha, Texas, where the D.A. and the police are being sued for, literally, highway robbery: A federal class-action lawsuit alleges that cops have been illegally stopping hundreds of mostly out-of-town, Black and Latino motorists, and giving them the choice of taking a felony charge, or handing over their money and valuables. A black grandmother from Akron, Ohio, was forced to give up $4,000 after Tenaha police pulled her over. Meanwhile, an interracial couple from Houston surrendered over $6,000 to police, who had threatened to take their children and place them in foster care. Between 2006 and 2008, the town has seized around $3 million under this perverse use of Texas’ forfeiture law, which requires such seized money to be used for law enforcement purposes. But in Tenaha, proceeds from these illegal seizures went to a church and a little league baseball team, and one officer received a $10,000 check. “We try to enforce the law here,” George Bowers, the town’s mayor said. “We’re not doing this to raise money.”

And consider the town of Tulia, Texas (there seems to be a pattern with these Texas towns), where a racially motivated drug sting led to the arrest of 46 people, nearly all African American, on bogus drug charges. No drugs, money, or weapons were seized because no crimes had been committed. Yet, some of these people were sentenced to very hard time, 99 years in one case. Fourteen of the defendants took pleas and were sent to prison. Prosecutors relied on the testimony of a sketchy undercover narcotics agent with a checkered past. The regional, 26-county drug task force that masterminded the sting was allowed to play by its own rules. They received federal money, and were funded based on the number of arrests and convictions they helped win. Such disasters cannot occur without the participation of sheriff’s departments, disreputable police officers, and unscrupulous district attorney’s offices that are looking to make that big score.

And society participates in the madness by putting profit into imprisonment, and by endorsing public officials who thrive on a “tough on crime”, “lock ‘em up and throw away the key” stance.

It is not hard to see how the concept of plea bargaining, by essentially replacing justice with remuneration, quickly becomes a way of extorting the poor and accepting bribes from the rich. In such a system, disparity and unequal treatment is not merely expected, it's the only possible outcome. Companies like BAE buying their way out of trouble is as inevitable as poor people suffering the need for "results" with prosecutions, regardless of guilt.

Lord Goldsmith tells us that "that's the way to deal with these issues and companies need to understand that." I'm quite sure that they do. It's the rest of us, those whom the plea bargain system is not biased in favour of, who require an explanation. In what world, under what malleable definition, does this class as justice?